Carney v. Preston

• Decision Date: 10 June 1996
• Docket Number: No. 94C-07-117-WTQ,94C-07-117-WTQ
• Citation: 683 A.2d 47
• Parties: Christopher CARNEY, Individually and as Guardian Ad Litem of Lauren Carney, a minor, and Lauren Carney, Plaintiffs, v. Helen D. PRESTON, Defendant. C.A. . Submitted:
• Court: Delaware Superior Court

Page 47

683 A.2d 47

Christopher CARNEY, Individually and as Guardian Ad Litem of

Lauren Carney, a minor, and Lauren Carney, Plaintiffs, v. Helen D. PRESTON, Defendant.

C.A. No. 94C-07-117-WTQ.

Superior Court of Delaware,

New Castle County.

Submitted: June 10, 1996.

Decided: Aug. 1, 1996.

Barbara J. Gadbois, Borin & McDonald, P.A., Wilmington, and Joseph D. Regan, Donahue & Donahue, Lowell, Massachusetts, for Plaintiffs.

Stephen P. Casarino, Casarino Christman & Shalk, Wilmington, for Defendant.

OPINION AND ORDER

QUILLEN, Judge:

Liability in this case is admitted. The jury returned a verdict of $14,000. It would surprise the Court if there was anyone in the courtroom at the time the verdict was rendered who was not shocked by the inadequacy of the amount. The Court will therefore not at this point review the injuries arising from the automobile accident, which included some permanent facial scarring suffered by a then thirteen year old girl. The low award is so grossly out of proportion to the injuries suffered as to shock the Court's conscience and sense of justice. The low dollar amount of the verdict must therefore be set aside. Mills v. Telenczak, Del.Supr., 345 A.2d 424, 426 (1975); DiGioia v. Schetrompf, Del.Super., 251 A.2d 569, 570-71 (1969); see also Storey v. Camper, Del.Supr., 401 A.2d 458, 464, n. 6 (1979). The Court finds the verdict inadequate as a matter of law. The main purpose of this opinion is to justify the use of additur.

The case has some other features which were raised by counsel in the case post-trial and therefore must be dealt with specifically and which may even be generally worthy of passing comment because they relate to the litigation process as faced by a trial judge. My critical remarks on these isolated matters should not suggest the case was not well tried. Indeed, in my view, the case was well tried.

Notwithstanding the above conclusion about the inadequacy of the damages award, the Court finds merit in the closing argument for the defendant that there were two cases before the jury, "Lauren's case and the litigation case." I do not find that argument objectionable or improper as the plaintiffs claim. Lauren Carney is doing fine. She is a lovely young lady, physically attractive and mentally alert, living a full life academically, athletically, and socially. The idea she lives in a harmful repressive state of denial because she does not want to talk about the accident, a very unfortunate experience in her life, is certainly one a jury is free to reject. I suppose most people live in a state of denial about something--death, for instance. Lauren Carney's controlled outlook may well for her be a sign of health. She is too busy with her life to dwell on a horrible experience in an automobile accident. It may be better, as the jury verdict suggests, for family and professionals to treat her like the young adult she is, including respecting her judgment on revisiting the accident and her judgment on future medical treatment. Everyone has advantages and disadvantages; Lauren Carney is taking advantage of her abundant advantages and dealing with her relatively few disadvantages, both very well.

Nor is the Court impressed with the argument that defense counsel's closing remarks constituted fatal error. Obviously the jury has a duty to be fair to the defendant and that was the main point being made. But the remarks about burdens suffered by the defendant were perhaps borderline. Trials, however, are not perfect and plaintiffs' counsel's objection after the conclusion of the defense argument, if sustained, would have prejudicially affected the dynamics of the trial. No one likes interruptions of argument, but, if an objection is going to be made, interruption may be the least prejudicial because it permits adjustment. Had the plaintiffs prevailed on their request after the defense argument and before rebuttal, the defense argument would have ended with a ruling of reprimand from the bench. That unfairness would have loaded the deck in plaintiffs' favor and dwarfed any claimed prejudice to the plaintiffs from the defense argument. Plaintiffs' counsel did not even bother to rebut the remarks, although it would have been easy to do so. This Court is not impressed by a post-argument claim of error to an argument which plaintiffs' counsel chose not to interrupt and to let lie without answer. I make that statement knowing full well how such claims can be grasped on appeal. But it is a trial tactic that this Judge for one would like to discourage.

The Court does find the unfortunate remarks by defense counsel about the guardian's personal role in pursuing the litigation were not supported by any evidence. The Court attempted, perhaps belatedly and inadequately, to cure that error. But each side had its say, and the Court did rule, and I doubt if the defense counsel remarks had any weight. But just to be clear of my view, nothing that happened at trial justified the conclusion that Lauren's parents were not united in their love for Lauren and were not pursuing wholeheartedly their view of Lauren's best interest. Any suggestion to the contrary was a low blow by the defense. But, on balance, I think the blow was dealt with in a manner that made prejudice unlikely.

In the briefing to overturn the verdict, the plaintiff improperly mentioned the offer of judgment in this case. Settlement offers are irrelevant. The insurer here met its responsibilities in a most professional fashion. It would be ironic if such responsible action were held against the defendant and her insurer post-trial. Hartnett v. Romspert, Del.Super., C.A. No. 93C-01-024-WTQ, Quillen, J. (Dec. 12, 1995). The use of settlement offers and offers of judgment to further a post-trial motion to set aside a verdict as inadequate is, in my judgment, highly improper.

I return now to the main issue at hand, legally inadequate damages and a request for additur. The plaintiffs' motion is for additur or a new trial. Although the defendant does not concede the award should be considered so low as to shock the conscience of the Court, defendant has suggested, if the Court finds otherwise, additur would be more appropriate than compelling a new trial.

There is little written about either remittitur or additur in our jurisprudence. Additur in a personal injury situation is a relatively new process in our State. The additur innovation is in sharp contrast to the practice of remittitur, which has a long history in our State. See authorities collected in Burns v. Delaware Coca-Cola Bottling Co., Del.Super., 224 A.2d 255, 259 (1966). Indeed, although Judge Wooley recognized legal inadequacy of damages as a "good ground for which to grant a new trial," he wrote in 1906 that "there [was] no case in this jurisdiction in which the court has granted a new trial, because the damages were too small." 1 VICTOR B. WOOLEY, WOOLEY ON DELAWARE PRACTICE § 736 (1985). Soon thereafter, this Court filled the gap noted by Wooley in Fulmele v. Forrest, Del.Super., 86 A. 733, 736 (1913), saying "[w]here a verdict is grossly inadequate, ... the same legal principles govern in an application for a new trial, as where the damages awarded are grossly excessive." See also DiGioia v. Schetrompf, 251 A.2d at 570-71 and cases cited therein. Additur was later to arrive on the Delaware scene.

But, with regard to additur, the same principles as remittitur astonishingly do not apply in the federal courts. As Judge Herlihy recently noted, the United States Supreme Court over sixty years ago decided that the Seventh Amendment to the United States Constitution forbade federal courts from granting additur. Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935); Bacon v. Thomas, Del.Super., C.A. No. 94C-08-213-JOH, Herlihy, J., 1996 WL 527224 (July 9, 1996). The Seventh Amendment reads:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

As will be discussed, infra, the Dimick decision is controversial but it has survived as the law governing the federal courts. Some states, however, permit additur and Delaware is now among them. It does not seem to me, given the almost identical jury trial issue arises in a State context and the primacy of the issue, that Dimick can simply be ignored. I am aware of no Delaware case that discusses either additur or remittitur in connection with the litigants' constitutional right to a jury trial in civil cases. But our law seems as decisively clear as it is analytically thin. Our Supreme Court clearly held in Moore v. Neal, Del.Supr., No. 363, 1982, at 3-4, Christie, C.J., 474 A.2d 141 (Oct. 17, 1983) (ORDER) that "the decision of the Superior Court is REVERSED and the case is REMANDED with instructions to designate an appropriate additur and with further instructions to conduct a new trial on the issue of damages ... if appellee is unwilling to agree to the additur." From these trenches, the Supreme Court's recognition of the role of the Trial Judge in Delaware is much appreciated; it is perhaps no coincidence that the author of the Order served on this Court for twenty-six years.

This Court, in cases involving unliquidated damages, has granted additur several times. See Breeding v. Johnston, Del.Super., C.A. No. 91C-02-195, Taylor, J., 1992 WL 148005 (June 10, 1992) (jury verdict $45,000; additur verdict designated $75,000); Bowles v. White Oak, Inc., Del.Super., C.A. No. 86C-AP-107, Babiarz, J., 1992 WL 19936 (Jan. 31, 1992) (jury verdict $17,350; additur verdict designated $22,500--both before comparative negligence applied); Cerroni v. Walls, Del.Super., C.A. No. 83C-MY-20, Taylor, J., 1986 WL 6599 (May 8, 1986) (jury verdict $7,000; additur verdict designated $15,000); Battle v. Mercier,...